More Fun and Games With the SG

Yesterday (Monday), the Supreme Court heard oral argument Decker v. Northwest Environmental Defense Center, an important Clean Water Act case. Very briefly, the Ninth Circuit had basically re-written an EPA rule (in the context of an environmental “citizen suit”) and, in so doing, subjected certain theretofore exempt “industrial” logging-related activities to federal permitting requirements. Affected states and logging interests asked for cert. Against the advice of the Solicitor General, the Supreme Court granted that request—presumably, to decide the case on the merits.

The justices never got the chance. The reasons appear in the following colloquy between Chief Justice Roberts and Deputy Solicitor General Malcolm L. Stewart [insertions mine]:

MR. STEWART: Mr. Chief Justice, and may it please the Court [no, it won’t]:

On Friday, the EPA administrator signed a new rule that amends EPA’s existing regulatory definition of the term “stormwater discharge associated with industrial activity.” The new rulemaking specifically disapproves the Ninth Circuit’s decision in this case and states explicitly that the only facilities under SIC Code 2411 that are industrial are rock crushing, gravel washing, log sorting and log storing.

CHIEF JUSTICE ROBERTS: Were you as surprised as we were to learn about that final rule?

MR. STEWART: No, we were not.

CHIEF JUSTICE ROBERTS: When did you learn that the final rule would be issued on Friday?

MR. STEWART: I learned on Friday morning that the final rule would be issued. I learned on Friday afternoon that the final rule had been issued. Within five minutes of that time, I alerted counsel for both the Petitioners [who in turn alerted the Court] and -­

CHIEF JUSTICE ROBERTS: You had no idea before Friday that this was coming out?

MR. STEWART: I knew that it was a strong possibility — I knew that it was a strong possibility that it would come out. The EPA had issued a notice in September of proposed rulemaking. There was a notation on OMB’s website in early November to the effect that the rule had been transmitted for final approval by OMB.

CHIEF JUSTICE ROBERTS: In early November?

MR. STEWART: In early November.

CHIEF JUSTICE ROBERTS: Maybe in the future you could let us know when something as definite as that comes. There were 875 pages on the merits briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.

MR. STEWART: I’m sorry, Your Honor [but not sorry enough not to make up an excuse]. We -­you know, we did explain in the opening brief that the rule had been -­

CHIEF JUSTICE ROBERTS: Oh, I know, that there was a proposed rule. Is it your experience that proposed EPA rules become final within a couple of months particularly?

MR. STEWART: No, I think that — well, I think this happened more quickly than it usually does, but I think we intended respect for the Court’s processes rather than disrespect. Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument; but, it would have been even worse, I think, from the standpoint of the parties’ and the Court’s decision-making processes if the rule had been issued a week or two after the Court heard oral argument.

CHIEF JUSTICE ROBERTS: Well, maybe. And it would have been best if we had known about this in early November.

MR. STEWART: Yes, Your Honor, but that was before the election, when we were campaigning on a platform of “EPA? What EPA?” We sprung back into action the day after, and among the first things we fixed is this lawsuit. No disrespect.

Ok: I made that last reply up. But the rest is fer real, verbatim.

The entire oral argument revolved around, what now—moot the case? Say that cert was improvidently granted? Hold it, and order re-briefing on what the new rule does or doesn’t do? Send the case back to a lower court (which—district or appellate?), and if so with what instructions?

I think it’s unlikely that the justices will decide the case on the merits, in the first instance and without any record to review. If so, the government’s underhanded maneuver will have accomplished what the government failed to accomplish by opposing certiorari—keep the case out of the Supreme Court, lest the justices create a legal obstacle to some other underhanded EPA maneuver on logging and related activities.

“Whatever it takes” cleverness is one way to run a government. It’s not a good way to make friends on the Court.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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